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the tort of defamation l.
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  1. The tort of Defamation Libel and Slander Chapter 4-5-6

  2. Definition of civil libel Written or printed expression that tends to damage a person’s standing in the community through words that attack an individual’s character and professional abilities

  3. Tort of Defamation • Libel-published or broadcast defamation • Slander-spoken defamation

  4. Kinds of Libel • Civil • Criminal

  5. Kinds of Libel • Civil: lawsuits for harming reputation • Criminal: laws for criticizing government in times of war (rare these days)

  6. Elements of Libel • Defamation • Identification • Publication • Falsity/fault

  7. Civil Libel & Slander cases involve: • Judge • Plaintiff • Defendant • Jury

  8. Can the government sue for Libel? No! Chicago v. Tribune Co. 1923

  9. Can the government sue for Libel? But, individual members of government can but they have a hard time winning!

  10. Who can be libeled? • Person? Yes • Charity? Yes • The Government? No • Corporation? Yes • Club or group? Yes

  11. Definition of criminal libel An inflammatory or seditious statement about the government or a government official which might incite rebellion.

  12. Criminal libel a.k.a. Seditious Libel

  13. Criminal Libel • Judge • State • Defendant • Jury

  14. Civil libel:Plaintiff’s Burden of Proof • Publication • Identification • Defamation • Falsity • Fault

  15. Publication means material was sent in any of the following : • The Print Media • Broadcast Media • Internet • Newsletters

  16. “Publication” presumes: • that a “third party” heard/saw/read the defamatory material

  17. Identification: • Mistaken Identity is often cause of libel suits against mass media outlets

  18. Identification: • Person does not have to be identified by “name”...it could be a picture, or they could be identified by a widely known nickname

  19. Group Identification: • No magic number exists to protect media from claim of “identification” when defaming entire groups of people…but

  20. Group Identification: • The larger the group the harder it is for them to win a libel suit

  21. Group Identification: • So, be especially careful with small groups because it is easier to prove “identification”

  22. Falsity: • “Small errors are usually not actionable” unless…

  23. Falsity: • they directly relate to the loss of reputation (defamation).

  24. These can be libelous: • Newspapers • Broadcasting • Photographs • Cartoons • Paintings

  25. These can also be libelous: • Sculpture • Graffiti • Effigies • Advertising • Billboards

  26. Crime: reporting that someone is a murderer when they have only been charged with the crime. Occupation: “Dr. Jones is a quack.” Examples of Defamatory Comment

  27. Business: “Jones Auto Mart is a rip-off.” Trade libel: “Tobacco companies are murderers.” Defamatory Comment

  28. “Fault” is defined differently depending on whether it the plaintiff is a private or public person The complexities of “Fault”

  29. All purpose public persons (George Bush) Limited (President Hoops of USI) Some kinds of public persons:

  30. Famous entertainers and Athletes (especially pro athletes) Other kinds of public persons:

  31. made it harder for public persons to win a libel suit…read about NY Times v. Sullivan in both your textbooks! NEW YORK TIMES v. SULLIVAN (1964):

  32. Curtis Publishing Co. v Butts (1967) clarified “reckless disregard” Cases that clarified NEW YORK TIMES v. SULLIVAN (1964):

  33. Found that circumstances of reporting including the time element involved in checking facts are important in determining reckless disregard Curtis Publishing Co. v. Butts:

  34. The court said an honest mistake made in a “hot news situation” involving a public figure is NOT reckless disregard for the truth. Associated Press v. Walker (1967):

  35. Gertz claimed he was not a “public figure” so he had only to prove “negligence” not NY Times Malice Gertz v. Welch (1974):

  36. Established the principal that media must be guilty of something beyond a mere falsehood…there had to be a finding of “fault” Gertz v. Welch (1974):

  37. everyone must prove falsity and fault…but public persons must also prove NYT Malice REMEMBER:

  38. Fault for private person cases is to show “negligence” on the part of the media REMEMBER:

  39. Fault for public figure cases is to show reckless disregard for the truth or that the media published something they knew was untrue (New York Times Actual Malice) REMEMBER:

  40. Cherry Sisters v. Des Moines Leader (1901) Victory for the right to criticize public performers/performances Some Famous Libel Cases:

  41. Carol Burnett v. National Inquirer (1983) Called her “drunk and rude.” She was awarded $150,000 Some Famous Libel Cases:

  42. Gen. Westmoreland v. CBS (1984) Deceived the public about Viet Nam? He sued for $120 million but settled for an apology from CBS ($18-million spent on legal fees) Some Famous Libel Cases:

  43. Wayne Newton v. NBC (1990) Mafia ties? He sued for $5.3 million. He won, but no damages were awarded as it was reversed on appeal. Some Famous Libel Cases:

  44. Libel: Defenses and Damages Chapter Six:

  45. Defenses against libel • Truth • Opinion • Privilege • Statutes of limitation • Consent

  46. Truth as a defense • Normally absolute • No time limitations

  47. Opinion as a defense • Not provably false • Figurative language • Fair comment

  48. OLLMAN TEST • Can statement be proved true or false? • What is the common meaning of the words?

  49. OLLMAN TEST • What is the journalistic context of the remark? • What is the social context of the remark?

  50. Privilege as a defense: Two types • Absolute Privilege • Qualified Privilege